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Hawaii AG Instructs Chiefs of Police to Broadly Grant Concealed Carry Licenses, but not Open Carry

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From an opinion issued Thursday:

Following Bruen, the language in Hawaiʻi Revised Statutes ("HRS") § 134-9 requiring that an applicant "[i]n an exceptional case … show[] reason to fear injury to the applicantʻs person or property" in order to obtain a concealed carry license should no longer be enforced…. Assuming this approach to concealed carry licenses, Bruen does not require any change to the requirements established under HRS § 134-9 to obtain an unconcealed carry license….

For example, the chiefs of police can and should still require that applicants for a concealed carry license "[b]e qualified to use the firearm in a safe manner," "[n]ot be prohibited under section 134-7 from the ownership or possession of a firearm," and "[n]ot have been adjudged insane or not appear to be mentally deranged." The chiefs of police should also still require that applicants for a concealed carry license "[a]ppear to be a suitable person to be so licensed." See Bruen (discussing a "suitable person" requirement which "precludes permits only to those 'individuals whose conduct has shown them to be lacking the essential character o[r] temperament necessary to be entrusted with a weapon'" … [and] recognizing that states may impose requirements "designed to ensure only that those bearing arms in the jurisdiction are … 'law-abiding, responsible citizens'").

Being "a suitable person" means that the applicant does not exhibit specific and articulable indicia that the applicant poses a heightened risk to public safety. The chiefs of police may consider the following factors when determining whether an applicant displays specific and articulable indicia that the applicant poses a heightened risk to public safety, such that the applicant is not "a suitable person to be so licensed":

  1. Whether the applicant has been involved in recent incidents of alleged domestic violence;
  2. Whether the applicant has been involved in recent incidents of careless handling or storage of a firearm;
  3. Whether the applicant has been involved in recent incidents of alcohol or drug abuse;
  4. Whether the applicant has been involved in other recent violent conduct….

Although Bruen recognized a right to public carry under the U.S. Constitution, it did not recognize a specific right to either concealed or unconcealed carry. See Bruen ("[T]he history reveals a consensus that States could not ban public carry altogether."); id. ("[I]n the century leading up to the Second Amendment and in the first decade after its adoption, there is no historical basis for concluding that the pre-existing right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry." (emphasis added)); id. ("[I]t was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry."). This leaves states with discretion to place good cause restrictions on one form of carry, where similar restrictions are not placed on the other form of carry.

Although, as noted above, good cause should no longer be required for concealed carry licenses, the good cause requirement in HRS § 134-9(a) for unconcealed carry—that an applicant must "sufficiently indicate[]" an "urgency" or "need" to carry a firearm and that the applicant is "engaged in the protection of life and property"—should still be applied as to unconcealed carry applications. {The standards that the chiefs of police should apply in considering applications for unconcealed carry licenses are discussed in Attorney General Opinion No. 18-1.}

Thanks to Alan Beck for the pointer.